No. 89-46
I N THE SUPREME COURT OF THE STATE OF MONTANA
1989
STATE OF MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
KYONG CHA K I M ,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e Fourth J u d i c i a l ~ i s t r i c t ,
I n and f o r t h e County o f M i s s o u l a ,
The H o n o r a b l e J a c k L. G r e e n , J u d g e p r e s i d i n q .
COUNSEL OF RECORD:
For Appellant:
J o s e p h M . Goldman and M i c h a e l F . B a i l e y ; Goldman Law
O f f i c e s , M i s s o u l a , Montana
For Respondent:
Hon. Marc R a c i c o t , A t t o r n e y G e n e r a l , H e l e n a , Montana
Kathy S e e l e y , A s s t . A t t y . G e n e r a l , H e l e n a
R o b e r t L. Deschamps, 111, County A t t o r n e y , M i s s o u l a ,
Montana
S u b m i t t e d on B r i e f s : June 3 0 , 1989
Decided: S e p t e m b e r 1 8 , 1989
Filed :
Justice Fred J. Weber delivered the Opinion of the Court.
Kyong Cha Kim was convicted by jury of prostitution, a
misdemeanor, and promoting prostitution, a misdemeanor, in
the Fourth Judicial District Court, Missoula, Montana. Ms.
Kim was sentenced to six months on each count, to be served
in the Missoula County Jail, the sentences to be served
consecutively. Both sentences were suspended. Ms. Kim was
also fined $500 on each count. From these convictions, Ms.
Kim appeals. We affirm.
1. Did the District Court err in denying defendant's
motion to dismiss based on entrapment?
2. Did the District Court err in denying defendant's
motion to suppress certain evidence obtained through a con-
sent to search warrant?
In the fall of 1987, Ms. Kim moved to Missoula, Mon-
tana, where she opened a sauna massage business named the
Crossroads Sauna. Shortly after the business opened the
Missoula County Attorney's office began receiving complaints
about prostitution at the business.
In October 1987, the county attorney's office began an
investigation into the activities of the Crossroads Sauna.
Initially, on October 21, 1987, two detectives, posing as
truck drivers, went to the sauna. A female employee of the
sauna showed them the facilities and explained that the sauna
offered a $40, $60 and $100 massage. Both officers testified
that when they asked what the $100 massage included, they
were told it included "everything." The detectives did not
request a massage during that visit. They returned on Novem-
ber 10, 1987, and on this visit they spoke directly to Ms.
Kim who told them only the $100 massage was available.
However, when the officers refused to pay $100, Ms. Kim said
they could receive the $40 massage. Both detectives were
then asked to sign a form acknowledging that they would not
give anything of value for any sexual conduct. The detec-
tives testified that the $ 4 0 massage consisted of a sauna, a
shower, and a back rub by Ms. Kim and another employee.
During that same visit the two detectives asked Ms. Kim
about holding a bachelor party for a friend at the Crossroads
Sauna. Ms. Kim agreed to the party. She stated, however,
that each member of the party must receive the $ 1 0 0 massage.
When the detectives asked her what this included she said it
included "everything," and that she would teach the groom how
to make love to his new wife.
On November 19, 1987, six deputies and a deputy county
attorney arrived at the Crossroads Sauna for the purported
bachelor party. They brought beer with them and on the way
there each had consumed a beer or less in order to appear to
be partying. One officer carried a gun. Ms. Kim and two
female employees admitted the officers. A fourth woman was
on the premises but never became involved with the party.
The men were escorted to a room where the groom was
given a bottle of champagne, and seated on a chair. The
officers testified that the two employees sat on his lap and
began to unbutton his shirt and take off his belt. An offi-
cer and the deputy county attorney then began talking to Ms.
Kim outside the room. Conflicting testimony was presented as
to who initiated conversation about sexual intercourse,
however, the officers testified that when they asked Ms. Kim
about protection, she assured the officers that she had
"rubbers." The negotiations ended with an agreement that for
the $ 1 0 0 each, the groom would have sex with all three women,
and the other members of the party would each have sex once.
The officers testified that this conversation was carried on
in a quiet and businesslike manner.
After this conversation, Ms. Kim was arrested and
handcuffed, as were the two employees. They were given
Miranda rights. While one employee became very upset and had
to be physically subdued, the officers testified that Ms. Kim
and the other employee were cooperative and composed. Ms.
Kim was asked if she would sign a consent form, allowing the
officers to search the premises. She agreed to sign the form
and a search was conducted. During the search Ms. Kim showed
the officers where boxes of condoms were stored in her freez-
er. A later count revealed that this supply included 334
condoms. Ms. Kim entered pleas of not guilty to prostitution
and promoting prostitution.
Ms. Kim was tried by jury in Justice Court on May 26,
1988, and a verdict of guilty was returned on both counts.
Ms. Kim then appealed to District Court. She moved for
dismissal, alleging the affirmative defense of entrapment.
She also moved to suppress the evidence seized during the
search. The hearing on these motions was held on September
29-30, 1988, and the court denied both motions. Ms. Kim was
tried by jury on October 26-28, 1988, and the jury returned a
verdict of guilty on each count.
I
Did the District Court err in denying defendant's
motion to dismiss based on entrapment?
As a pretrial motion, Ms. Kim moved to dismiss the
charges against her based on the affirmative defense of
entrapment. The court's hearing on this motion included
testimony from numerous witnesses, including Ms. Kim and her
employees, and witnesses for the State. The court denied
this motion.
Initially, the State contends that the defense of
entrapment is not available to a defendant who denies
committing the acts for which she is charged, citing State v.
Kamrud (1980), 188 Mont. 100, 103-04, 611 P.2d 188, 190. See
also State v. O'Donnell (1960), 138 Mont. 123, 354 P.2d 1105;
State v. Parr (1955), 129 Mont. 175, 283 P.2d 1086. In the
present case, Ms. Kim pled not guilty to both the charge of
prostitution and the charge of promoting prostitution. Thus,
the State contends that Ms. Kim was not entitled to assert
this defense. However, because the District Court heard
testimony on this motion we will review the defense on its
merits.
Entrapment is an affirmative defense available to a
criminal defendant, and is codified in S 45-2-213, MCA, as
follows:
A person is not guilty of an offense if
his conduct is incited or induced by a
public servant or his agent for the
purpose of obtaining evidence for the
prosecution of such person. However,
this section is inapplicable if a public
servant or his agent merely affords to
such person the opportunity or facility
for committing an offense in furtherance
of criminal purpose which such person
has originated.
The elements of this defense were further explained by
this Court in State v. Hanley (1980), 186 Mont. 410, 414, 608
P.2d 104, 106, wherein we enumerated the elements of entrap-
ment as follows:
(1) criminal intent or design
originating in the mind of the police
officer or informer; (2) absence of
criminal intent or design originating in
the mind of the accused; (3) luring or
inducing the accused into committing a
crime he had no intention of committinq.
See State v. Grenfell (1977), 172 ~ o n t .
345, 564 ~ z 171: State - -
d ex rel. Hamlin
v. District Court (1973), 163 Mont. 16,
515 P.2d 74; State - Karathanos, supra.
v.
The burden of establishing entrapment rests on the
defendant. A court may determine that entrapment exists as a
matter of law. Kamrud, 611 P.2d at 191; State v. Grenfell
(1977), 172 Mont. 345, 564 P.2d 171. However, if there are
conflicting facts, the issue is properly submitted to a jury.
State v. McClure (1983), 659 P.2d 278, 280, 202 Mont. 500,
503. Additionally, in reviewing the denial of a motion to
dismiss based on entrapment, this Court will view the evi-
dence and inferences in a light most favorable to the State.
State v. Merrill (Wash.App. 1979), 597 P.2d 446.
Ms. Kim contends that entrapment was established as a
matter of law, requiring dismissal of the charges. Ms. Kim
contends that the criminal intent originated in the minds of
the law enforcement officers, that she had no intent herself
to commit the crime, and that she was induced to commit the
crime. Ms. Kim relies on the cases of Kamrud and Grenfell in
support of her contention. Having reviewed the evidence and
the elements of this defense, we conclude that entrapment did
not exist as a matter of law.
At the hearing, the officers testified that on the
evening of the party, two of the women employees sat on the
lap of the "groom," and began to unbutton his shirt and undo
his belt buckle. No testimony suggested that these women
were induced to begin these actions. Additionally, the
testimony by law enforcement personnel indicated that Ms. Kim
did not have to be induced to participate in discussions
about sexual intercourse for pay. Instead, their testimony
emphasized that Ms. Kim was totally agreeable to negotiations
regarding sex, and that she was prepared to supply "protec-
tion" in the form of condoms. In response, Ms. Kim denied
that she agreed to provide sex. She testified that she was
supposed to "tease" the "groom," and that any references to
sexual acts was all a part of the joke. This evidence
regarding the defense of entrapment was properly submitted to
the jury.
Ms. Kim relies on this Court's decisions in Kamrud and
Grenfell to support her contention that the court should have
found entrapment as a matter of law. These cases are distin-
guishable in several respects, however.
In Grenfell an informant became a friend of the defen-
dant over a period of six months and "persistently requested"
help from the defendant in procuring drugs. In concluding
that entrapment had occurred, this Court stated, "The record
shows Grenfell was not predisposed to commit this offense."
Grenfell. 564 P.2d at 173.
In Kamrud, law enforcement officers induced the defen-
dant to obtain drugs for them. As inducement to commit the
crime, the officers used marijuana themselves in the presence
of defendant, they became friendly and held parties to ingra-
tiate themselves with defendant. There was no evidence that
Mr. Kamrud had sold drugs in the past, or that the idea of
selling the drugs originated with Mr. Kamrud. In Kamrud the
officers violated the law themselves by using and giving away
marijuana. In concluding that entrapment was established as
a matter of law, this Court stated:
"In short, there is a controlling distinction
between inducing a person to do an unlawful act and
setting a trap to catch him in the execution of a
criminal design of his own conception .. .I'State
v. Karathanos (1972), 158 Mont. 461, 493 P.2d 326,
331. . ."
Kamrud, 611 P.2d at 191.
Comparing the present case to the facts of Kamrud and
Grenfell, this controlling distinction is apparent. This is
not a case where there was no suggestion of criminal activity
prior to the investigation. The investigation was initiated
because of citizen complaints. In the present case the law
enforcement officers set a trap. However, the evidence,
including the testimony of the officers, and the large supply
of condoms, indicated that Ms. Kim did not have to be induced
to participate in discussions about sexual intercourse.
There was substantial credible evidence to support a finding
that criminal intent originated with Ms. Kim. Understand-
ably, the District Court refused to find that as a matter of
law Ms. Kim lacked criminal intent, or was induced to commit
the crime. These determinations were properly left for the
jury. We affirm the District Court's denial of Ms. Kim's
motion to dismiss.
11.
Did the District Court err in denying defendant's
motion to suppress certain evidence obtained through a con-
sent to search warrant?
Immediately following her arrest, Ms. Kim signed a
consent to search which allowed the officers to search the
Crossroads Sauna. Ms. Kim claims that her consent was not
voluntary under the totality of the circumstances, citing
Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct.
2041, 36 L.Ed.2d 854. She contends that the court erred in
denying her motion to suppress evidence obtained as a result
of this search. At the hearing on this motion the District
Court heard testimony about how the consent was obtained, and
other relevant evidence. The court denied Ms. Kim's motion
to suppress.
The right to be free of an unreasonable search and
seizure is guaranteed by the Fourth Amendment to the United
States Constitution, and is made applicable to the states
through the Fourteenth Amendment. One may however, consent
to a search as long as that consent is proved by clear and
convincing testimony and as long as it is established that
the consent was not coerced. The State has the burden of
showing that the consent was voluntary. Voluntariness is a
factual issue and is determined from the totality of the
circumstances. Schneckloth, 412 U.S. at 248-49.
On appeal, our standard of review when considering a
court's ruling on a motion to suppress, is whether the record
contains substantial credible evidence to support the dis-
trict court's findings, and whether those findings were
applied correctly as a matter of law. State v. Beach (1985),
217 Mont. 132, 147, 705 P.2d 94, 103. "The credibility of
the witnesses at a suppression hearing is properly determined
by the trial court that heard testimony and observed the
witnesses." The trial court is the finder of fact in a
suppression hearing. State v. Kirkaldie (1978), 179 Mont.
283, 289-90, 587 P.2d 1298, 1302-03.
Ms. Kim urges that her consent was not voluntary for
the following reasons. She emphasizes that she was hand-
cuffed and in the custody of seven male law enforcement
officers. She notes that she is only five feet tall, and
weighs only 100 pounds. She alleges that she was intimidated
because one of her employees had to be physically subdued.
Ms. Kim alleges that the officers threatened to "tear the
place apart" if she did not sign the consent form. She
alleges that one of the officers pointed a gun at one of her
employees. Ms. Kim also claims her Korean descent and lack
of familiarity with American processes made her vulnerable to
the officers' requests.
Ms. Kim signed the form approximately twenty-five
minutes after she was arrested and approximately fifteen
minutes after she witnessed the scuffle with her employee.
At the time she signed, her handcuffs had been removed, and
she was seated, drinking a pop and smoking. The officers
testified that they read the form to Ms. Kim twice and that
she also read it herself. The officers denied making any
threats about "tearing the place apart." Only one officer
was carrying a gun, and he testified that he held the gun at
his side for less than a minute while the arrests were being
made, then put it away. He testified that he never pointed
it at anyone.
While custody is a factor in the totality of the cir-
cumstances test, it does not necessarily negate consent.
State ex rel. Kotwicki v. District Court (1975), 166 Mont.
335, 344, 532 P.2d 694, 699. Additionally, Ms. Kim's back-
ground belies her contention that she lacked understanding of
the proceedings. Testimony at the hearing established that
Ms. Kim is an American citizen who has owned several busi-
nesses in America. In the past she has worked with sheriff
and police departments as an interpreter. She has also
worked as an interpreter in courtrooms and in jails.
The court had the opportunity to hear the witnesses,
judge credibility, and weigh the evidence. The court deter-
mined that under the totality of the circumstances, the
State's evidence was clear and convincing that Ms. Kim's
consent was obtained voluntarily.
Ms. Kim also contends that the scope of the search
exceeded the scope of the consent. She claims that the
kitchen and office were not included in her consent. There
is no merit to this claim because the consent form clearly
authorized a search of Ms. Kim's "Premise Business located at
Crossroads Sauna/Wye.If Additionally, one officer testified
at the hearing that he explained to Ms. Kim that "every room
in the entire establishment would be searched." Ms. Kim
herself then directed the officers to the kitchen and showed
them where the condoms were stored. We affirm the District
Court's denial of Ms. Kim's motion to suppress.
Affirmed.
W e C ncur:
C ief Justice
Justices
Mr. Justice John C. Sheehy, dissenting:
In my opinion, this case involves an entrapment and
therefore the convictions ought not to stand.
On October 21, 1987, a captain of the Missoula County
Sheriff's Department directed two of his officers to visit
Kim's business premises and to investigate any possible
illegal activities being conducted thereon. The officers
went to the business in the guise of truck drivers, and were
then given a tour by the defendant of her business premises.
The men left the business, saying they would return at a
later date. They reported to the Captain that they observed
nothing while on the premises to indicate any illegal or
immoral activity being conducted by the defendant or her
employees.
While they were at the premises on October 21, 1987,
they discussed with Kim the services available at her
business. She explained to them there were three types of
services, for $40, $60 and $100, based on the length and
thoroughness of the massage and sauna. Kim explained that
the $100 massage and sauna included "everything." What
"everything" means is apparently in the ear of the beholder.
To Kim it meant everything related to massage and sauna. To
the officers, "everything" meant some sort of sexual favors,
although no discussion of sexual favors occurred at that
time .
On October 22, 1987, the Captain initiated a thorough
investigation of Kim's background. The Captain spoke to a
Missoulian reporter who reported that he and a newspaper
photographer had gone undercover to Kim's business in search
of a possible story, and had both purchased and received
massages. Neither of them had been offered sex by the
defendant in exchange for compensation nor had either
observed any immoral or illegal activity.
On October 22, 1987, the Captain telephoned officers in
Seattle, Washington. Here it was reported to the Captain
that there was no record of the defendant having ever been
suspected of the charges of any offense during the years she
resided and worked in the Seattle area.
The Captain checked the licensing authorities in the
state to determine whether she had a proper business license.
He found nothing in discord. He also requested of the
Federal Immigration and Naturalization Service a thorough
search of the records and status of all Koreans in the state
of Montana with special emphasis on the defendant's records
and status. That report came back negative. He inquired of
the owners of the premises that she was leasing. They
advised that they had investigated her reputation and found
nothing against her. The Captain investigated her motor
vehicle records and found nothing in connection of her
operation of an automobile.
On November 10, 1987, the Captain required his two
undercover officers again to visit ~ i m ' spremises. They were
instructed to pay for a $40 massage and sauna. The massages
were administered only after each officer signed an
acknowledgement that no sex would be offered or demanded.
After the massages, the officers returned to the front of the
business establishment and talked to Kim. There they told
her that they wanted to have a bachelor party for seven or
eight friends at her place of business. She agreed to
reserve the premises for their bachelor party. Her
understanding was that the purpose was to tease the
prospective groom as a part of the bachelor party.
Thus the idea for the bachelor party originated in the
minds of the investigating officers. The proposal was not
one that would be a part of Kim's regular business.
Following the second account, the officers again reported to
their Captain that they had observed no illegal or immoral
activity being conducted on Kim's premises.
On November 19, 1987, six Missoula County Deputy
Sheriffs and one Deputy County Attorney, arrived at the
premises for the pre-arranged bachelor party. They had
consumed alcohol prior to entering "to give the appearance of
being on a party." They all engaged in teasing the groom
about his upcoming marriage. The only activity that hints of
sexuality is that one of the woman unbuttoned the groom's
shirt and attempted to remove his belt. while it was the
officers who were saying to the prospective groom that they
were going to have him "laid" before his marriage, it was
then that the officers took ~ i m aside, and negotiated a
proposal for sexual favors. She was placed under arrest. No
money changed hands. No sexual activity of any kind ensued.
Under State v . Kamrud (1980), 188 Mont. 100, 611 P.2d
188, this was entrapment pure and simple.
1. The criminal design to solicit (this is a
solicitation case) sexual activity did not originate with ~ i m
but with the undercover officers.
2. The officers did more than merely afford Kim with
the opportunity to commit the offense, they first committed
the offense themselves.
3. They set up the situation by first ingratiating
themselves with her even though they found no evidence of any
criminal activity in connection with her business.
4. The investigation of her background and the
undercover investigations gave no evidence that she was
predisposed to commit any offense or that the idea originated
with her.
There is no evidence that when on the second visit they
proposed a bachelor party that the bachelor party would
include prostitution. If that had occurred, they would have
so reported to their supervising officer.
The whole mess is a dirty business, but it originated in
the Sheriff's Department.
Mr. Justice William E. Hunt concurs with the dissent
of Mr. Justice J o h n C. Sheehy.
Justice
Mr. Justice R. C. McDonough concurs with the foregoing dissent.